United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 8, 2006
Charles R. Fulbruge III
Clerk
No. 04-31051
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOAH MOORE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, DAVIS, and STEWART, Circuit Judges.
PER CURIAM:
I
On September 11, 2003, a Federal Grand Jury indicted Noah
Moore on a single count of conspiring to distribute more than 100
grams of heroin. Moore was then serving a sentence for a 1993
federal narcotics conviction.
On January 29, 2004, Moore moved to suppress recordings of his
telephone conversations, which had been monitored and recorded by
the Bureau of Prisons during his imprisonment and which the
government intended to introduce at trial. The district court
denied the motion, finding that Moore had consented to being
recorded. Moore also moved to dismiss the indictment, alleging
that the government destroyed recordings of exculpatory
conversations. The district court denied that motion as well,
finding that the allegedly exculpatory information was not material
and that the government did not act in bad faith.
At trial, the government offered evidence that in 1993 Moore
began serving a 295-month sentence in federal prison for cocaine
distribution. Hillary Williams, a resident of New Orleans, began
visiting Moore shortly after Moore’s incarceration, at which time
Moore introduced Williams to a Nigerian inmate, Tunde Ademuiiwa.
Moore told Williams that Tunde assisted Moore with his appeal and
told Tunde that Williams would help pay for Tunde’s legal services.
In New Orleans, Williams began collecting money from Moore’s
friends, ostensibly to pay for Tunde’s legal services. Eventually,
Tunde, who had been released from prison and deported to Nigeria,
began calling Williams at home, asking for money. Tunde told
Williams that Moore owed him $50,000.00. In August 2002, Williams
visited Moore in prison. Moore explained that Tunde was a Nigerian
heroin dealer, that Moore’s mother and sister stole $50,000.00,
that Moore owed Tunde for past heroin sales, and that Moore was
counting on Williams to help him pay it back. Moore informed
Williams that he had ordered more heroin from Tunde and that it
would be shipped to Williams hidden inside African art books.
Between December 2002 and January 2003, Tunde sent Williams three
African art books concealing heroin, and Williams wired $10,000.00
2
to Tunde. To settle the remainder of the debt, Williams planned to
buy more heroin from Tunde and to sell it through his friend
“Chris.” Unbeknownst to Williams, “Chris” was a confidential
informant for the DEA. After receiving information from “Chris,”
the DEA approached Williams about his involvement in the drug
conspiracy, and Williams cooperated. Williams explained the heroin
importation scheme, put undercover DEA agents in contact with Tunde
and his Nigerian suppliers, and ultimately testified at trial.
In addition to Williams’s testimony about the conspiracy, the
government introduced recordings of conversations between Moore and
Tunde over the prison telephone. Of 282 tapes, 16 were retained by
the government, while the others were recycled.1 In these calls,
Moore and Tunde, spoke in coded language. For example, on July 16,
2000, Moore and Tunde spoke about a “pizza” that costs “about two.”
They also talked about having to “put together transportation” and
having to buy a “Visa.” On December 22, 2000, Tunde told Moore the
“dude” wanted Moore to “get somebody, find somebody that I can call
that will respond anytime I say call me...because I’m wanting to
schedule some things.” Tunde advised Moore that the “dude” wanted
payment for “flight tickets” in advance. Tunde said “in the middle
of January we are on. It’s gonna be 50/50 whatever I got...
1
There were also 78 tapes of recorded phone calls between Moore and
Williams, all of which were recycled. Only these 78 tapes are the subject of the
alleged Jencks Act violation (see infra issue III), whereas all of the lost
tapes, approximately 344, are the subject of the alleged Brady violation (see
infra issue II).
3
everything’s OK it’s going to be between two and two-five.” In
another cryptic call on June 19, 2001, Tunde told Moore “I can only
get about 400 tribes right now, OK,” but “within the next two weeks
I can get about 800.” Tunde explained “I gotta go to the...to
other countries that have different tribes to so [sic] if we get
these clothes from every tribe.” On June 12, 2002, Moore told
Tunde that he sent a check but “just was able to send two.” Moore
said, “I will probably have the pictures for you this week....”
Tunde responded, “I need those pictures.” Moore testified at trial
that these conversations were about his post-conviction petitions.
Specifically, Moore claimed that he and Tunde were talking about
raising $25,000.00 to hire habeas attorney Linda Sheffield, that
Moore enlisted friends and family to contribute to the legal fee,
and that Moore sent Sheffield’s contract to Tunde in Nigeria for
Tunde’s review. Moore also contended that many of the references
were to business deals he and Tunde were planning, such as
importing t-shirts and diamonds. The government argued that these
calls, and the cryptic references to “clothes,” “tribes,” “pizza,”
“flight tickets,” and “pictures,” were really related to heroin and
payments for heroin. Moreover, a convicted felon, involved in a
separate plan to import and distribute cocaine, corroborated that
he and Moore discussed heroin, using code words like “clothes,”
“fruit,” or “tennis shoes.” The government did not dispute that
Moore sometimes talked with Tunde and others about his habeas case,
4
but argued that Moore was trying to raise money for a habeas lawyer
by selling drugs.
The jury found Moore guilty as charged, and the district court
sentenced Moore to a prison term of 200 months, to run consecutive
to Moore’s 1993 federal sentence, and also to an eight-year term of
supervised release. He appeals on six grounds.
II
Moore argues that the district court erred by denying his
motion to suppress telephone conversations recorded by the BOP. In
addition to his consent to the recordings, Moore contends that the
government must also satisfy a second exception to the Federal
Wiretap Act2—the tapes must also have been collected in the
ordinary course of law enforcement. We review factual findings of
a ruling on a motion to suppress for clear error and legal
conclusions de novo.3
Section 2515 of the FWA prohibits the use as evidence of
intercepted communications “if the disclosure of that information
would be in violation of this chapter.”4 The FWA contains numerous
2
18 U.S.C. §§ 2510-2522. The FWA is formally known as Title III of the
Omnibus Crime Control and Safe Streets Act of 1968, as amended by the Electronic
Communications Privacy Act of 1986 and the Communications Assistance for Law
Enforcement Act of 1994. See Quigley v. Rosenthal, 327 F.3d 1044, 1047 n.1 (10th
Cir. 2003).
3
See United States v. Hunt, 253 F.3d 227, 229-230 (5th Cir. 2001).
4
18 U.S.C. § 2515. Section 2515, prohibition of use as evidence of
intercepted wire or oral communications, reads, in its entirety:
5
exceptions to the requirement of court-ordered authorization. The
FWA provides that “[i]t shall not be unlawful under this
chapter...for a person acting under color of law to intercept a
wire, oral, or electronic communication, where such person is a
party to the communication or one of the parties to the
communication has given prior consent to such interception.”5 The
FWA also makes an exception for any “electronic, mechanical, or
other device...which can be used to intercept a wire, oral, or
electronic communication” used “by an investigative or law
enforcement officer in the ordinary course of his duties.”6
Moore argues that the government must satisfy both
exceptions—it must have the consent of a party to the conversations
and they must have been recorded in the ordinary course of law
enforcement. Moore points to provisions in which Congress
expressly insulated the government from § 2515's broad prohibition
against unlawful disclosure: “Notwithstanding any other law...;”7
Whenever any wire or oral communication has been intercepted, no
part of the contents of such communication and no evidence derived
therefrom may be received in evidence in any trial, hearing, or
other proceeding in or before any court, grand jury, department,
officer, agency, regulatory body, legislative committee, or other
authority of the United States, a State, or a political subdivision
thereof if the disclosure of that information would be in violation
of this chapter [18 USCS §§ 2510 et seq.].
Id.
5
18 U.S.C. § 2511(2)(c); see also id. at (d).
6
18 U.S.C. § 2510(5)(a)(iii) (referred to as the “law enforcement”
exception).
7
18 U.S.C. § 2511(2)(a)(ii).
6
“Notwithstanding any other provisions of this title...;”8 and
“Nothing contained in this chapter....”9 Absent this express
intention, Moore argues that the government must satisfy both
exceptions because neither excludes the applicability of other
sections. The district court found that consent alone suffices to
support admission. We agree.
The government cites United States v. Head, which recognizes
the exemption for consensual recordings but does not explicitly
address the unnecessary exercise of satisfying additional
criteria.10 The Second, Fourth, Seventh, and Tenth circuits have
all expressly or impliedly found one exception sufficient to
warrant admissibility.11 Moore’s analysis is strained, and he
8
18 U.S.C. § 2511(2)(e).
9
18 U.S.C. § 2511(2)(f).
10
586 F.2d 508, 513 (5th Cir. 1978) (“Furthermore, 18 U.S.C. § 2511(d)
exempts from the operation of the entire chapter, of which section 2518 is a
part, consensual recordings such as made here.”); see also United States v.
Mendoza, 574 F.2d 1373, 1377 (5th Cir. 1978) (stating that “18 U.S.C. §
2511(2)(c) provides that such consent renders lawful the interception of a wire
or oral communication”).
11
In re High Fructose Corn Syrup Antitrust Litig., 216 F.3d 621, 625 (7th
Cir. 2000) (stating that “[t]o subject interceptions made lawful by sections
2511(2) (c) and (d) to section 2517(3) would have absurd consequences”); United
States v. Hammond, 286 F.3d 189, 191-192 (4th Cir. 2002) (stating “the tapes were
properly used by the FBI only if (1) the initial interception by the BOP was
lawful pursuant to an exception to the general injunction prohibiting use of
wiretaps,” thus proceeding to analyze the issue as if any exception would suffice
(emphasis added)); Unites States v. Amen, 831 F.2d 373, 378 n.1 (2d Cir. 1987)
(affirming the district court’s ruling on alternative grounds—consent—while
casting doubt on the applicability of the law enforcement exception on which the
trial court relied); United States v. Horr, 963 F.2d 1124, 1126 (10th Cir. 1992)
(explicitly relying on the consent exception to affirm the district court which
instead relied on the law enforcement exception).
7
unpersuasively relies on an inapposite Ninth Circuit decision.12
We are persuaded that the disputed provisions of the FWA are each
exceptions under which the recorded material may be admitted. In
short, consent alone suffices to admit Moore’s recorded
conversations, and he does not contest that he consented to the
recording.13 The district court did not err by denying Moore’s
motion to suppress the tapes.
III
Moore reasserts a violation of Brady v. Maryland14, pointing
to the government’s failure to preserve 344 tape recordings of
conversations between himself and Williams or Tunde.15 We review
de novo claims of Brady violations.16
Brady requires the government to disclose to criminal
12
United States v. Van Poyck, 77 F.3d 285 (9th Cir. 1996) (finding both
exceptions applicable and, therefore, not deciding if one would suffice).
13
As the district court found, the BOP sufficiently notified Moore that
all of his phone calls were subject to surveillance and recording. The following
warning is posted at all prison phones: “Notice: The bureau of Prisons to
Inmates. Telephone Regulations. All conversations on this phone are subject to
monitoring. Your use of this telephone constitutes consent to this monitoring.
You must contact the unit team to request an unmonitored attorney call.”
14
373 U.S. 83 (1963).
15
The government possessed the tapes, though they were housed at the BOP,
since the BOP acted as its investigatory agent. See United States v. Ramirez,
174 F.3d 584, 588 (5th Cir. 1999) (“There is no doubt that the Bureau of Prisons
was part of the investigative team regarding this transaction. The tapes were
in the possession of the Bureau of Prisons until they were taped over, and
therefore they were in the ‘possession of the United States’....”).”
16
United States v. Green, 46 F.3d 461, 464 (5th Cir. 1995).
8
defendants favorable evidence, material to guilt or punishment.17
Materiality requires “an exculpatory value that was apparent before
the evidence was destroyed” and that was “of such a nature that the
defendant would be unable to obtain comparable evidence by other
reasonably available means.”18 Moreover, “evidence is material only
if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have
been different. A ‘reasonable probability’ is a probability
sufficient to undermine confidence in the outcome.”19 Absent a
showing of bad faith, failure to preserve potentially useful
evidence does not constitute a denial of due process.20 In sum,
impermissibly withheld evidence must be either (1) material and
exculpatory or (2) only potentially useful, in combination with a
showing of bad faith on the part of the government.21 The district
court appropriately denied Moore’s motion to dismiss on two
grounds, failure to show that the lost evidence was exculpatory and
failure to establish bad faith. On appeal, Moore does not
describe a single exculpatory fact that might have emerged from the
lost tapes, despite participating in each recorded conversation.
17
Brady, 373 U.S. 83; United States v. Agurs, 427 U.S. 97 (1976).
18
California v. Trombetta, 467 U.S. 479, 489 (1984).
19
United States v. Bagley, 473 U.S. 667, 682 (1985).
20
Arizona v. Youngblood, 488 U.S. 51, 57-58 (1988) (The government
tested the cocaine four times prior to its destruction–each test confirming the
substance as cocaine.).
21
Illinois v. Fisher, 540 U.S. 544 (2004).
9
Rather, Moore generally argues that the necessary showing of
materiality need not be overly burdensome.22 He then relies on
conclusory allegations in order to construct a constitutional
deprivation—the inability to contextualize the government’s
excerpts, the inability to effectively cross-examine the
government’s witness, and the need to avoid a perception of
malfeasance.23 These vague assertions do not establish any
exculpatory evidence, let alone a reasonable probability that such
evidence affected the outcome of the trial.24
22
First, materiality does not require the defendant to
demonstrate by a preponderance of the evidence that omitted
evidence would have resulted in acquittal. Second, he need not
weigh the withheld evidence against the disclosed evidence to
show he would have been acquitted by the resulting totality.
Third, if evidence is found material, there is no need to
conduct a harmless error analysis. Fourth, the withheld
evidence should be considered as a whole, not item-by-item.
The sum of these four guideposts means that to show a due
process violation when the state withholds evidence, a
defendant need not prove that his trial necessarily would have
had a different outcome; a lack of faith in the result is
sufficient.
DiLosa v. Cain, 279 F.3d 259, 263 (5th Cir. 2002) (internal citation omitted).
23
“It is a troubling prospect if government officials can routinely
destroy drugs, then argue that the drugs had no exculpatory value because the
government officials ‘knew’ that the drugs were indeed drugs.” United States v.
Belcher, 762 F.Supp. 666, 672 (W.D.Va. 1991) (“Belcher I”) (finding a
constitutional violation involving material exculpatory evidence where no one had
ever tested the plant in order to determine if it was in fact marijuana before
its destruction); United States v. Belcher, 769 F.Supp. 201 (W.D.Va. 1991)
(“Belcher II”). The tapes were recycled prior to any knowledge that they would
be used to prosecute Moore.
24
At trial, Moore submitted two allegedly exculpatory uses for the tapes.
The district court concluded that Moore’s “own description of the claimed
evidence would prove only uncontested facts.” First, Moore claimed calls existed
which would reveal that he had not spoken to Williams in more than a year;
Williams testified to this very fact. Second, Moore contends that the
government, which argued that he often used his habeas petition as code to
conduct the conspiracy, deprived him of conversations detailing his legitimate
efforts to file a habeas petition, yet Moore’s attorney testified about his
10
Moore also fails to successfully traverse the second avenue
for demonstrating a Brady violation. With respect to potentially
useful evidence, the lost tapes parallel the cocaine in
Youngblood,25 which was destroyed pursuant to standard procedure
and, thus, did not constitute a constitutional violation.
Similarly, the BOP recycled all of the tapes after 180 days, as per
the BOP’s policy.26 As such, the BOP did not destroy the tapes in
bad faith. Moore’s argument that bad faith can be inferred from
the fact that only excerpts containing inculpatory evidence
survived and that retaining all of the tapes would not have been
unduly burdensome altogether fails to prove bad faith. The
district court did not err in concluding that Moore failed to
demonstrate any material exculpatory evidence contained on the
recycled tapes and failed to demonstrate that the government acted
in bad faith in destroying potentially exculpatory evidence.
IV
Moore reasserts that the government’s failure to provide the
recordings of 78 conversations between himself and Williams
efforts to file a habeas petition. Therefore, these reasons fail to establish
a reasonable probability that the outcome would have differed because Moore
presented this evidence by alternative means.
25
See Youngblood, 488 U.S. 51.
26
The district court found that Moore failed to establish that the
recordings were destroyed for a reason “other than pursuant to the Bureau of
Prisons’ regular and routine procedures.”
11
violated the Jencks Act,27 which requires the government to produce
any “statements made by a witness concerning the subject matter on
which the witness has testified that are in the possession of the
government after the witness testified on direct examination in a
criminal trial....”28 “The definition of ‘statement[s]’ includes
‘a...recording...which is a substantially verbatim recital of an
oral statement made by said witness and recorded contemporaneously
with the making of such oral statement.’”29
Jencks Act sanctions should be imposed in cases of bad faith
and negligent suppression of evidence but not in the case of good
faith loss by the government.30 This Court has instructed the
district courts to “weigh the degree of negligence or bad faith
involved, the importance of the evidence lost, and the evidence of
guilt adduced at trial in order to come to a determination that
will serve the ends of justice.”31 Even when a violation exists,
we apply harmless-error analysis.32 “The clearly erroneous standard
27
The government did not preserve any of the 78 recordings of telephone
conversations between the government witness and Moore.
28
18 U.S.C. § 3500(b); FED.R.CRIM.P. 26.2.
29
Ramirez, 174 F.3d at 587 (quoting 18 U.S.C. § 3500).
30
Id. at 589.
31
Id.
32
Id. at 587 (citing United States v. Martinez, 151 F.3d 384, 391 (5th
Cir. 1998)). “In the context of the Jencks Act, we must strictly apply the
harmless error analysis review and determine whether the error itself had a
substantial influence on the judgment in addition to determining whether there
was sufficient evidence to support the conviction.” Id. (citing United States
v. Keller, 14 F.3d 1051, 1054-55 (5th Cir. 1994)).
12
of review applies to district court determinations of what material
must be produced under the Jencks Act.”33
As discussed supra III, the district court did not err in
finding an absence of bad faith. Similarly, the BOP’s actions did
not amount to negligence, as the tapes were recycled pursuant to
policy before the DEA began to investigate Moore.34 Moreover, Moore
has not identified any useful information in the conversations,
despite having participated in each. The district court did not
clearly err in denying relief, pursuant to the Jencks Act.
V
Moore contends that the district court erred by admitting
evidence concerning a heroin transaction, in which Moore was not
involved and which occurred outside the scope and time-frame of the
charged conspiracy. We review a district court’s evidentiary
rulings for abuse of discretion35 and are persuaded that the
district court did not abuse its discretion in allowing the
government to offer corroborative evidence of a heroin sale from a
source in Africa in order to support a witness’ challenged
33
United States v. Cathey, 591 F.2d 268, 274 (5th Cir. 1979).
34
But cf. Ramirez, 174 F.3d at 589 (“We also find unpersuasive the
government's arguments that it is excused because the tapes containing the lost
calls were destroyed before Mrs. Ramirez's indictment. Even so, the tapes were
certainly available during the investigation of Ramirez therefore allowing the
government to preserve only the conversations it believed were favorable to the
prosecution.”).
35
United States v. Wilson, 322 F.3d 353, 359 (5th Cir. 2003).
13
testimony that he had knowingly accepted heroin from that source.
On direct examination, Williams testified that, at Moore’s
request, he accepted delivery of three African art books from
Contonou, Benin, the books containing packages of heroin.36 On
cross, Moore challenged this testimony, suggesting that the
government coached Williams and that Williams did not actually know
about the contents of the books. Corroborating Williams’s
testimony, a DEA agent described the similarities of the three
packages Williams received. Each had been addressed to a
Professor, bore the same return address, and was shipped via DHL.
The DEA agent testified that DHL notified him about a fourth
package, similar in weight to the other three and bearing the same
return address. The package contained an African art book with
heroin hidden inside the front and back covers. The DEA agent
explained that with Williams’s cooperation he ordered two more
heroin shipments. Both arrived from Benin inside African art
books. The government proffered this justification for the
testimony: “[the illicit materials] even if intended for someone
outside the conspiracy, corroborates that Hillary Williams did
receive an African Art book containing 150 grams in the cover from
exactly the same return address [on] it.” Moore does not contest
the relevance of this testimony, though he objected to potential
confusion in the inclusion of this uncharged quantity of heroin.
36
Since Williams’s packages were not recovered, the government introduced
the shipping documents.
14
Finally, the DEA agent testified that he asked Williams’s
supplier to send heroin through a courier instead of in a book.
Exhibits 35 (DEA agent’s testimony), 36 (heroin), and 42 (lab
report identifying the drug) were entered into the record. Moore
contends that the government offered no new justification for the
submission of this additional evidence, that the evidence related
to the heroin seized from the drug courier is “irrelevant to the
proceedings altogether,” as the modus operandi differed, and that
it is unduly prejudicial.37 The government contends that the
evidence was properly admitted to refute Moore’s challenge to
Williams’s testimony that he knowingly received heroin from a
source in Benin through Tunde.38
In response to Moore’s objections, the district court
instructed the jury on at least two occasions to consider the
evidence only to corroborate Williams’s testimony.39 Moore contends
that the limiting instruction did not rectify the error
37
See FED.R.EVID. 403.
38
Relevant evidence need only make the existence of a material fact “more
probable or less probable than it would be without the evidence.” FED.R.EVID.
401. The government argues that this evidence is also relevant to an e-mail from
Tunde to Williams in which the two discussed the use of a courier rather than
mail.
39
The district court warned the jury, stating that the government offered
the additional drug sales “in connection with [the government’s] arguments
relative to the credibility of Hillary Williams.” Also, “...what the
government’s alleging is that these last exhibits are used to bolster, according
to the government, its witness’ credibility, because you have to make that
decision, the government doesn’t make that, it’s just their judgment and that the
amount of substance which you heard testimony is heroin in that particular
exhibit, I think it’s either 32, is not to be used by you in assessing the weight
of any heroin if you get to that point in your verdict, okay.”
15
particularly because the government improperly used the evidence in
its closing to implicate guilt, after the limiting instructions had
been issued.40 We disagree.
“[E]ven if the district court abused it discretion, such
‘abuse is only reversible if the error affected a substantial right
of the complaining party,’ i.e., we would subject the abuse to
harmless error review....”41 Even if the district court abused its
discretion, any error was harmless, mitigated by the district
court’s limiting instructions, as independent and uncolored
evidence provides ample basis upon which a jury could have
convicted Moore.
VI
In his supplemental, pro se brief, Moore contends that the
district court made five errors in its jury instructions related to
conspiracy and burden of proof. A defendant abandons issues raised
in a supplemental brief when not raised and argued in the original
brief.42 In any event, Moore’s contentions fail on the merits,
particularly since Moore did not object on these grounds before the
40
The government stated: “He waiting at the Sheraton for three days to
give Noah Moore’s mother a brief with seven issues or seven diamonds, seven
watches, seven postcards or seven, 700 grams of heroin, a courier with 700 grams
of heroin. How could that work? Let’s look at Government Exhibit 42.”
41
United States v. Akpan, 407 F.3d 360, 369 (5th Cir. 2005) (citations
omitted).
42
United States v. Bullock, 71 F.3d 171, 178-179 (5th Cir. 1995) (citing
Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994)); see also Hadnot v. Bay,
Ltd., 344 F.3d 474, 476 n.4 (5th Cir. 2003).
16
district court and plain error review consequently applies.43 “We
are satisfied that no injustice is done by deeming [the
defendant’s] issues waived.”44
VII
Lastly, Moore objected to the calculation of his sentence
during the sentencing hearing. Specifically, he alleged that a
jury did not find the quantity of drugs, a leadership role, an
obstruction of justice enhancement, or the enhancements advocated
in the PSR based on a separate charging document. The government
concedes preserved Booker45 error. Pursuant to a properly preserved
Booker objection, we will vacate and remand for resentencing unless
the government can establish harmless error beyond a reasonable
doubt.46
The burden of proving that “the district court would not have
sentenced [Moore] differently had it acted under an advisory
Guidelines regime” rests upon the government.47 It cites an
unpublished opinion, United States v. Prones, for the proposition
that “the district court’s conscious decision not to award a
43
United States v. Cyprian, 197 F.3d 736, 741 (5th Cir. 1999).
44
Bullock, 71 F.3d at 179.
45
United States v. Booker, 125 S.Ct. 738 (2005).
46
United States v. Pineiro, 410 F.3d 282, 284 (5th Cir. 2005).
47
Akpan, 407 F.3d at 377.
17
concurrent sentence [means] that any Booker error was harmless
beyond a reasonable doubt.”48 The government argues that the
district court’s decision to run Moore’s sentence consecutively
with his previous, 295-month drug trafficking sentence came after
much judicial effort.49 Moore had 59 months remaining in this
former sentence, and the district court’s decision to impose 200
months in addition to the remaining 59 months evidences the court’s
unwillingness to reduce the sentence, irrespective of the mandatory
Guidelines.50
“However, whether imposition of consecutive sentences is
sufficient to demonstrate that a Booker error is harmless is a
fact-sensitive inquiry that must examine the relationship between
the two sentences imposed.”51 Moore’s convictions are not factually
related. Even so, after selecting a sentence of 200 months from
48
145 Fed. Appx. 481, 481 (5th Cir. 2005).
49
The government cites a passage in which the district court notes the
consideration given to Moore’s sentence. This passage does not expressly mention
the decision to run the sentences consecutively.
50
But cf. United States v. Olivares-Martinez, 767 F.2d 1135, 1137 (5th
Cir. 1985) (stating that “consecutive sentencing is an appropriate mechanism for
imposing distinct punishment for separate criminal acts, and that a defendant has
no right to have concurrent sentences imposed for two totally unrelated offenses"
(citations omitted)).
51
United States v. Woods, 2006 U.S. App. LEXIS 3437, 12-13 (5th Cir.
2006) (stating that the imposition of a consecutive sentence based on unrelated
charges does not weigh in favor of harmless error). United States v. Garza, 429
F.3d 165, 170 (5th Cir. 2005) (“Second, in an unpublished decision, we determined
that Booker error was harmless where the sentencing court expressly refused to
run the defendant's federal Guidelines sentence concurrently with his state
sentence. We find that the Government's evidence in the instant case falls
woefully short of the circumstances presented in these cases” (citations
omitted).).
18
within the mandated range of 188-235 months, the district court had
a binary choice in sentencing Moore—a 59-month difference between
the two options. The record does not demonstrate beyond a
reasonable doubt that the district court wanted to sentence Moore
to as many as 259 months. Constrained by the Guidelines, the
district court could not freely sentence Moore between the 200 and
259-month terms.
We AFFIRM the conviction and, in light of the Booker error,
REMAND to the district court so that it may resentence Moore if, in
its discretion under the now-advisory Guidelines, it so chooses.
19